Stepping Back a Moment – The Legal Basis in Favour of a Principle of Humanitarian Intervention

Sir Daniel Bethlehem KCMG QC is a barrister in practice at the London Bar, Visiting Professor of Law at Columbia Law School and was formerly principal Legal Adviser of the UK Foreign & Commonwealth Office.

The debate on possible intervention in Syria has moved beyond the discussion of whether any such action would be justified by reference to a principle of international law of humanitarian intervention.  Given the importance of, and interest in, this issue to this point, however, it may be useful to step back a little and reflect on the detail of the legal arguments that might be advanced in support of the existence of a principle of humanitarian intervention – not specific to Syria or the use of chemical weapons but for purposes of addressing an unfolding humanitarian catastrophe more generally. 

There are at least two distinct though intersecting strands of legal argument that could support a sustainable conclusion that the use of force in circumstances of dire humanitarian need would be lawful under international law notwithstanding the absence of an authorising Chapter VII resolution of the UN Security Council or other Charter-based justification (such as collective self-defence).  The first strand is purpose-driven, focused on the insufficiency of a narrow, traditionalist view of the law on such matters and the consequential imperative to translate from the existing law to address circumstances of dire humanitarian need.  This approach contends for the rapid crystallisation of a norm of customary international law in favour of a principle of humanitarian intervention – akin to the process that has seen the rapid crystallisation of other principles of customary international law, such as that of maritime straight base-line delimitation, on the basis of only limited (and even contested) State practice (and opinio juris) but compelling reason and need.

The second strand is more rooted in the detail of the law, pulling together threads of practice that in isolation may appear fragile and unreliable but which, when knitted together, are more robust and compelling.  As every litigation lawyer knows, an assessment of the legality of contested conduct is seldom a linear matter, there invariably being another side to the case.  Legality therefore often falls ultimately to be assessed by reference to a circumstantial appreciation of a range of factors rather than resting simply on some apparently trumping proposition of law.  In the case of the law on humanitarian intervention, an analysis that simply relies on the prohibition of the threat or use of force in Article 2(4) of the UN Charter, and its related principles of non-intervention and sovereignty, is overly simplistic.  The law in this area is more complex, even before one gets to any complicating issues of fact and imperatives of policy.

Threads of this second strand of argument are well known – the United Kingdom’s 1998 Kosovo principles, Responsibility to Protect (R2P), etc.  But there has so far been a failure, at least in the public debate, to draw these threads together in a manner that actually makes the case, as opposed to simply asserting it.  The 29 August 2013 paper indicating the UK Government Legal Position notes as a matter of proposition that “[i]f action in the Security Council is blocked, the UK would still be permitted under international law to take exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria … under the doctrine of humanitarian intervention, provided three conditions are met”.  Those conditions reflect the criteria for humanitarian intervention advanced by the UK in its 1998 paper circulated to NATO allies in respect of the unfolding humanitarian catastrophe in Kosovo.  The August 2013 HMG paper does not, however, set out any of the legal analysis that presumably underpinned the proposition of law that it asserted.

With the caveat that each thread that would go to make up this strand of argument is nuanced and would require elaboration to be properly developed, elements going to make up this strand of argument might include the following – these not being sequential points but rather part of a tapestry of argument.

1.      The compelling objective of the United Nations, as expressed in the preamble of the UN Charter, is “to save succeeding generations from the scourge of war” and “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person”.

2.      International law acknowledges a tightly constrained last resort right of States to act in situations of distress (to save life) and circumstances of necessity (to safeguard an essential interest against a grave an imminent peril).  While these principles – reflected in Articles 24 and 25 of the International Law Commission’s Articles on State Responsibility – do not provide a basis for humanitarian intervention of the kind here in contemplation, they reflect an appreciation that the law will be cautious about condemning limited action in last resort that is aimed at addressing extreme humanitarian exigencies.

3.      International law also precludes the wrongfulness of an act of a State towards another State if that act constitutes a counter-measure against the latter State aimed at procuring the cessation of an illegal act by that latter State.  This principle – addressed in Article 22 of the International Law Commission’s Articles on State Responsibility – would not provide a legal basis for humanitarian intervention of the kind here in contemplation (notably as it addresses non-forcible counter-measures only), but it nonetheless reflects an appreciation of law that it may not be tenable to allow manifestly illegal and egregious conduct by a State to simply go unaddressed.

4.      Whether or not justified by reference to a legal principle of humanitarian intervention, there have been notable examples over the years of States using force to intervene in other States for humanitarian purposes in the face of dire humanitarian need.  Three examples of such action, much discussed in the legal literature, were the Tanzanian intervention in Uganda, which led to the ousting of Idi Amin, the Vietnamese intervention in Cambodia, which led to the removal of the Khmer Rouge, and the Indian intervention in East Pakistan, that ultimately led to the creation of Bangladesh.

5.      The no-fly zones in Iraq from 1991, and the forcible action taken by the US, UK and France to police those zones, are an important part of this tapestry.  While Security Council resolution 688 (1991) expressed the Council’s grave concern at the repression of the Iraqi civilian population and the magnitude of human suffering, this resolution was not a Chapter VII resolution of the Security Council, did not recall or rely upon SCRs 678 (1990) or 687 (1991), which had authorised the use of force, and cannot therefore be relied upon for purposes of characterising the no-fly zones military action as UNSC authorised action.  It was not.  It was humanitarian intervention outside of the framework of a Chapter VII UNSC authorisation, albeit with some non-binding UNSC cover.

6.      The Kosovo intervention by NATO is the next building block in the crystallisation of a legal principle of humanitarian intervention, containing at least two important elements.  First, in October 1998, the United Kingdom circulated a note to NATO allies in which it explicitly advanced a narrowly tailored humanitarian intervention legal basis for military action absent a UN Security Council authorisation.  It is this same legal basis that HMG set out in respect of any action in Syria.  At the very least, this statement of position constitutes a clear and unambiguous view by the UK that there is a limited right of humanitarian intervention outside of the framework of the UN Charter.  Second, the UK statement cannot, however, simply be taken as an isolated expression of view of one State alone.  Although only few of the other NATO States that participated in the Kosovo military action in 1999 came out publicly to explain the legal basis of their action, there can be little doubt that most, if not all, considered that action to be lawful.  And, absent any other legal basis for that action, it is evident that the legal basis relied upon by NATO and its participating States – even if not expressed publicly – was that of humanitarian intervention.  The Kosovo precedent is therefore a much wider and more robust precedent than is often acknowledged.  Adam Roberts’ discussion of these issues in the October 1999 volume of Survival provides an illuminating account of this episode.

7.      The emergence of the concept of Responsibility to Protect provides a further link in the analytical chain.  While many academics suggest that the effect of the concept of R2P is to close down the space for action by States outside of the framework of the UN Charter – on the grounds that the R2P discussion has focused almost exclusively on action by the UN Security Council – there is room for a different view.  This is that, if the Security Council fails to act in what the Canadian-established high level International Commission on Intervention and State Sovereignty (ICISS) described in its 2001 Responsibility to Protect report as a “conscience shocking situation” – circumstances such as the genocide in Rwanda – reason and politics suggests that States are likely to act on other bases.  While noting the absence of a consensus accepting the “validity of any intervention not authorised by the Security Council or General Assembly”, the ICISS (in its 2001 report) went on to observe that, “if the Security Council fails to discharge its responsibilities in conscience-shocking situations crying out for action, then it is unrealistic to expect that concerned states will rule out other means and forms of action to meet the gravity and urgency of these situations.”  While this and other similar comments in an R2P context do not endorse the legality of non-UNSC authorised ad hoc humanitarian intervention, they acknowledge the fundamental challenge posed by Security Council inaction.  And, in the face of a conscience shocking situation but inaction by the Council, it is not a stretch of legal reasoning to say that the responsibility to protect admits of a narrowly tailored right of ad hoc action for a proper purpose.

8.      The significant developments, over the past 20 years, in the field of international criminal law further bolster the case in favour of a limited right of humanitarian intervention.  While genocide, war crimes and crimes against humanity have been crimes under international law for a much longer period, the past 20 years have seen the establishment of ad hoc international, and similar, criminal tribunals to try such offences, including in respect of acts committed in the circumstances of internal (or what began as internal) conflicts, such as those in the former Yugoslavia, Rwanda, Cambodia, Sierra Leone and elsewhere.  The establishment of the International Criminal Court is an important part of the same trend.  Flowing from this, and as a matter of the coherence of the law, it would raise a real issue of the credibility of the law for the international community to compel the post-hoc prosecution of those who are alleged to have committed the most heinous of atrocities but to deny a tightly constrained right of States to take action as a matter of last resort to prevent the (further) commission of such crimes in the first place in the face of manifest evidence of such conduct.

Drawing all of these – as well as other (such as developments in the law on human rights) – threads together, there is a case to be made in favour of the emergence of a tightly constrained principle of humanitarian intervention that is consistent with traditional conceptions of customary international law.  As to what the tightly constraining conditions of such action are or should be, elements drawn from the law on necessity and distress, as well as the criteria identified by the ICISS and others in respect of R2P, provide a good starting point.

As regards the relationship of such a principle with the UN Charter, three possible constitutional theories are apparent: (a) the customary international law principle could sit alongside the UN Charter (following the reasoning of the International Court of Justice in the Nicaragua case); (b) the customary international law principle could operate at an interpretative level, by reference to the interpretative canon reflected in Article 31(3)(c) of the Vienna Convention on the Law of Treaties, as regards the interpretation of the scope of Article 2(4) and other provisions of the UN Charter; and/or (c) the principle could be regarded as a supervening, later in time, principle of customary international law for purposes of filling in the gaps in, or even prevailing over elements of, the UN Charter.

Beyond the preceding, in the context of Syria, a full analysis would require consideration of a whole host of other legal issues, including at least: (a) the legal effect of the Security Council’s failure to act, (b) the legal effect that attaches to the use of chemical weapons, as distinct from other massive humanitarian violations that have occurred previously; (c) the legal effect of resolutions of the Arab League; (d) the legal effect of the opposition of Russia, China, Iran and others to the suggestion of intervention; and (e) the legal effect of the massive cross-border refugee flows into Turkey, Jordan and elsewhere.  Whether any intervention on humanitarian grounds would ultimately be assessed to be lawful would also be heavily contingent on the facts (including the soundness of the evidence relied upon) and the appreciations of the proper purpose of any such action and likelihood that such a purpose would be achieved.  The points set out above are therefore only the bare bones of the case to be made in favour of the existence of a principle of humanitarian intervention.  They are not a justification of any conduct that may be taken in reliance thereon.

One point in conclusion.  The debate in the UK Parliament, and the vote thereafter, cannot be taken as a rejection of a right of humanitarian intervention.  References to the law in the debate were brief, passing and inconclusive.  The vote, quite apart from the narrow party-political elements that contributed to its outcome, was focused on the wisdom of intervention, not on its legality.  For purposes of assessing the existence of a right of intervention, the HMG statement of position, asserting the existence of a narrowly tailored right to intervene, remains intact and relevant to an assessment of the international practice in this area.